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Sotomayor Not Sure if She'll Jump in Cert Pool
The National Law Journal
July 16, 2009
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Under questioning from Sen. Arlen Specter, D-Pa., on day four of her confirmation hearing, Supreme Court nominee Sonia Sotomayor indicated she is likely to follow Justice Samuel Alito Jr.'s approach to deciding whether to join the Court's "cert pool."
That's the arrangement that's been in place since 1972 whereby justices who participate pool their clerks for the purpose of summarizing and recommending action on incoming petitions. Those one-clerk summaries are then distributed to all the members of the pool. It started out small, but in the last decade or so, eight of nine justices participated -- all but Justice John Paul Stevens. The growth of the pool has led to criticism that individual clerks have too much power in the all-important gatekeeping function of deciding which cases the Court will take up and rule on.
Among the critics of the cert pool have been practitioners -- including onetime Hogan & Hartson appellate advocate John Roberts Jr. -- who have a hard time explaining to clients that their vitally important petitions have been read by only one or two law clerks before being tossed aside by the Court.
When Alito joined the Court in 2006, he at first joined the pool but then jumped out, after seeing how it operated and realizing that he'd prefer to have his own clerks give the petitions a look.
Sotomayor, who has clearly followed the long-running debate over the cert pool, said Thursday, "My approach may be similar to Justice Alito's." In other words, she said she wants to "experience the process for a while," presumably from inside the pool, before deciding whether to stay or leave, and "then figure it out." As a result, she told Specter, "I can't give a definitive answer."
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